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Monday, October 31, 2011

You've no doubt seen the news today that councils who fail to speedily place children in their care with adoptive parents are being named and shamed in new performance league tables, as part of the Government's initiative to improve the adoption system. I thought I would give a couple of relevant links, and a video:

The performance tables (actually Children in Care and Adoption Performance Tables) can be found on the Department for Education website, here, and the accompanying DfE press notice, here. For a response to the tables, see this article on Community Care, which reports that British Association of Social Workers chief executive Hilton Dawson condemned the move to name and shame councils as "absurd, crude and simplistic".

The Give a Child a Home campaign, which aims to encourage people to foster and adopt, has also been launched and naturally it has its own website, which can be found here.

Lastly, the DfE has published this video by Martin Narey, the Ministerial Advisor on Adoption:

Sunday, October 30, 2011

This story in The Telegraph (shouldn't that be the Sunday Telegraph?) today caught my eye, and not just because of the errors in it (China is not in Afghanistan, and for the love of Dawkins it's Register Office NOT Registry Office).

The story tells of the effect of the ruling by the Chinese Supreme Court on the 13th August that residential property is no longer to be regarded as jointly owned and divided equally in the event of a divorce. Instead, whoever paid for the property (which I take to mean whoever is registered as the legal owner) will keep it after the divorce. (Apparently rulings of the Chinese Supreme Court automatically replace existing law.)

The ruling is described as an attempt by the Court to shore up the "crumbling institution of marriage" (incredibly, there were almost one million divorces in China in the first half of 2011) by making divorce less attractive, although I can't see how it makes it less attractive for the property-owning party. The idea, it seems, is to discourage gold-digging women from marrying just to obtain a half share of their husband's (rapidly appreciating) property, but such a decision will obviously have other consequences.

As the story explains, women are unsurprisingly most likely to be the ones who lose out as a result of the ruling. We are told that some are fighting back, by telling their fiancées that they will refuse to have children, or care for his parents, unless they are registered as the co-owner of the property before they marry. Obviously, such options are not available to women who have already married, and many will receive nothing for their efforts contributing towards the family and raising children.

Some women are also concerned that the law will encourage husbands to take mistresses, safe in the knowledge that they will keep the house if their wives divorce them.

It seems to me that this is what can happen when you have important decision-making powers in the hands of a male-dominated Supreme Court. Hmm...

I heard this on the radio during the week, for the first time in a while. The wonderful "Take Five", written by Paul Desmond and performed by The Dave Brubeck Quartet. Hopefully, it will take your mind away from law and lawyers, albeit all too briefly:

Friday, October 28, 2011

Firstly, the Gazettereported yesterday that the Lord Chief Justice is ‘not giving up’ on more solicitor judges being appointed. He and Lord Phillips apparently said that diversity is at the core of their vision for the judiciary, encompassing "not only more women and ethnic minorities on the bench, but also more of those awful solicitors and the skill-sets they bring". They told a House of Lords committee last week that 'law firms should be more supportive of solicitors applying for judicial positions and stop allowing the issue to blight promising careers'. Hmm, no mention of the fact that many solicitors are put off entering the judiciary by the fact that it would entail a substantial reduction in their incomes...

Also in the Gazette this week (and elsewhere), a report that: "The biggest fall in university applications in more than 30 years has seen the number of candidates applying to study law drop by a record 5.2%, according to figures released by the Universities and Colleges Admissions Service." With the increase in tuition fees, this can come as no surprise to anyone. Mind you, I doubt very much whether many members of the public will complain about there being fewer lawyers in future...

Elsewhere, Solicitors Journalreports that the cost of the SRA’s 'change programme' is expected to reach £18 million by the end of this year. The programme, being handled by Tata Consultancy Services, a division of the India-based Tata Group, includes the move to online PC and other renewals through the ill-fated 'mySRA'. Quite where £18 million has gone is not clear to me. Let us hope that they think it is money well spent.

Finally, it seems that too much publicity can be bad publicity, at least as far as Ofcom is concerned. According to Solicitors Journal, an interview with actress Amanda Holden, the 'face of QualitySolicitors', on ITV1’s This Morning programme on the 29th July this year has been found to be in breach of broadcasting rules for unlawfully plugging the legal franchise. Ofcom found that the broadcast had unjustifiably promoted and given "undue prominence" to QualitySolicitors in breach of rules 9.4 and 9.5 of the broadcasting code. Somehow, I doubt that QualitySolicitors will be complaining...

It's like a bad case of déjà vu. Why is it that whenever a divorce case hits the headlines, the Telegraph goes overboard with numerous peripheral stories, including the compulsory 'Top ten/Biggest divorce settlements in British Courts' non-story?

Only ten days ago, the Telegraph reported the 'lottery prize' case. As I mentioned at the time, that was accompanied by an article in their personal finance section, a commentary and a Top 10 divorce settlements in British courts article (above left), which listed "some of the largest divorce settlements in British courts to date".

Today, the Telegraphfeatures the Vardinoyannis divorce case, which the Court of Appeal has confirmed will be heard "in the notoriously generous English courts". OK, but the paper is not content with just one story. In addition, it also features an article about the couple in their 'Relationships' section, an article telling us how 'Britain is divorce destination of choice for rich and powerful' (ignoring the fact that 'Britain' includes the entirely separate jurisdiction of Scotland) and, you've guessed it, a Biggest divorce settlements in British courts article (above right), which lists "some of the largest divorce settlements in British courts to date".

Thursday, October 27, 2011

Not an awful lot of family law news to report at the moment, but here are the 'highlights':

Home Secretary Theresa "and I am not making this up" May is launching a consultation on how a Domestic Violence Disclosure Scheme might work in practice. Under such a scheme - known as "Clare's Law" after Clare Wood, who was strangled by a man she met through Facebook - people would be given the power to find out from the police if a new partner has a history of domestic violence. The idea has provoked considerable discussion on the TV and radio, but I am unconvinced. Do they think that everyone will routinely check their new partner whenever they enter a relationship? Of course they won't. They'll only check if they have serious doubts about them, in which case...

Lastly, as I have mentioned here before (albeit not entirely seriously): "An alliance of organisations which represents the rights and needs of women, children, families and victims of domestic abuse and/or are engaged in the administration of family justice, has published a Manifesto for Family Justice, ahead of the Legal Aid, Sentencing and Punishment of Offenders (LASPO) Bill moving into Report Stage in the House of Commons", as reported by Family Law Week. The Manifesto calls upon the Government to:

Protect vulnerable women and children

Listen to the experienced practitioners who work in family justice and who understand that mediation, whilst beneficial in many cases, will not resolve many others, and

Consider with care whether the decision to remove legal aid from private family law cases will save the Government money or, in fact, cost more and lead to poor outcomes.

Wednesday, October 26, 2011

Everywhere you go these days you read and hear about 'Human Rights'. Try as you might, you can't avoid it, whether it be politicians on the TV bleating about prisoners' voting rights (quite how that would cause the end of society as we know it, I'm not sure), or entire blogs devoted to the subject.

It all makes you think that lawyers must talk about nothing else, but just how important are human rights in practice?

Well, obviously the answer to that question will depend upon where you practise, but the vast majority of lawyers work in general practices, doing the 'bread and butter' work of criminal litigation, civil litigation (debt collection, landlord and tenant etc.), family litigation, conveyancing and probate. How often do they have to consider human rights issues?

Very rarely, I would suggest. In my experience human rights had little or no bearing upon legal work 'at the coal-face'. As a family lawyer I never came across it other than in articles and seminars - certainly not in practice. As for my colleagues, I didn't know any criminal lawyers in the period after the Human Rights Act came into force so I can't comment about that area, but I don't remember any civil litigators mentioning the subject, and it was certainly never raised by conveyancers or probate practitioners.

Of course, my experience was very limited, but it makes sense: irrespective of section 3 of the Human Rights Act (which says that legislation must be read and given effect in a way which is compatible with the European Convention on Human Rights), our legislation and procedure is already likely to be compatible with the Convention - it would be extremely odd if it were not. Thus, for example, the vast majority of family law matters will be decided in accordance with family law rules, without needing to refer to human rights.

Human rights certainly has some importance, but in the real world of practising law it should surely be little more than peripheral, rather than hijacking centre-stage in the way that it has.

It's the most pressing legal issue of our times: where did the tops of the heads of people featured in Legalweek go to? You can find plenty of examples of this strange phenomenon on their website. Particularly good ones are here, here and here. What is going on?

I did mention this important matter on Twitter recently. I received a response from @benwheway, News Editor of Legalweek, who claimed that: "It's either the top of the head or the chin that has to go - It's a tough call but someone's got to make it..."

Personally, I don't believe a word of it. I think that Legalweek is scalping these people to make toupees. Expect them to branch out into the wig and toupee business at any time...

Tuesday, October 25, 2011

This looks like an interesting case, although unfortunately (and no disrespect intended), I can only find a report of it in The Bolton News. In particular, I can find no trace of a report of the Upper Tribunal decision, either on Bailii or on the Judiciary website. Accordingly, I am not 100% certain of the facts, but they seem to be as follows:

1. Mother of child applies to CSA/CMEC.

2. Father works for a private security company in Afghanistan.

3. CMEC incorrectly advise mother that they have no jurisdiction to deal with application, as father works in Afghanistan.

4. Mother appeals decision, and succeeds.

5. Father then appeals to Upper Tribunal, which finds in his favour, saying that the failure to pay child support arose solely from advice given by CMEC.

6. Mother then seeks compensation from CMEC, and receives £35,600.

(If any of the above is incorrect, or if anyone knows where a report of the Upper Tribunal decision may be found, do let me know.)

Note that, as mentioned in the report, Ms Kelly would not be entitled to child support/maintenance under the proposed new child maintenance system, which will be based on UK income tax returns.

* * * * *

UPDATE: It seems that my assumption of the facts in this case was not correct. I have received an email from CMEC which states:

"On the child maintenance case you mention - my understanding is it's not £35K compensation from CMEC. It's the sum the non-resident parent has been re-assessed to pay in maintenance as a result of the Upper Tier decision.

The error occurred because the case was governed by the 'old' ,pre-2003, rules which take a wider view of assessable income. Foreign-earned income (by those habitually resident in the UK) is not taken assessable under the current (post 2003) rules.

As we said in our quote , the government is seeking to widen the scope of liability in these cases. Despite claims to the contrary!"

Just goes to show you can't rely on what you read in the mainstream media, which includes the Daily Mail, although I'm sure you knew that anyway...

Further to my post last week, I see that Lucy Reed has picked up on the letter to the Gazette suggesting that represented litigants are now at a disadvantage when they appear opposite litigants in person. To see what a respected family law blogger has to say on the subject, go to Pink Tape.

Monday, October 24, 2011

According to this report on ABC News, authorities in Western Australia will soon be able to apply to have any house in the state declared an alcohol-free zone, in an effort to reduce domestic violence. The report doesn't explain how such measures will be enforced, and obviously they would do nothing to stop the consumption of alcohol elsewhere.

Saturday, October 22, 2011

This advert, which I would guess is from the 1960s, at least displays a slightly more subtle brand of sexism than some earlier adverts:

The text reads:

"Can your wife bake her own bread? Can she get a kid's leg stitched and not phone you at the office until it's all over? Find something to talk about when the TV set goes on the blink? Does she worry about the Bomb? Make your neighbors' children wish that she were their mother? Will she say "Yes" to a camping trip after 50 straight weeks of cooking? Let your daughter keep a pet snake in the back yard? Invite 13 people to dinner even though she only has service for 12? Name a cat "Rover"? Live another year without furniture and take a trip to Europe instead? Let you give up your job with a smile? And mean it? Congratulations."

Friday, October 21, 2011

I see that the Daily Mail yesterday covered a story that I posted about back in May.

Kevin Cotter from Arizona runs the blog My Ex-Wife's Wedding Dress, in which he lists 101 uses he has found for his ex-wife's wedding dress, such as using it as a grill cover, scarecrow clothing and a pasta strainer. Well, it seems the blog has been such a hit that next week it will be published in book form.

Family lawyers weren't the only members of the legal profession having an awards love-in this week. Simultaneously with the Family Law Awards, the Law Society held it's annual Excellence Awards on Tuesday. If you're interested in this sort of thing, you can find out who the winners were, here.

Congratulations are also in order for the Institute of Legal Executives, which has been granted a royal charter, enabling it to re-brand itself over the next few months as the 'Chartered Institute of Legal Executives'. Lucky fellows of ILEX will be able to refer to themselves as ‘chartered legal executives’, although the term 'fellow' may apparently disappear in the name of progress.

The bad news of the week was that QualitySolicitors will almost certainly axe its animated puppet-style ‘Miss QS’ in a new multi-million pound marketing campaign launched next year, according to Solicitors Journal. Craig Holt, founder of QualitySolicitors, said that "Miss QS had been a good and loyal servant to the brand", but that they may "be putting her out to pasture", as part of a "fairly significant revamp". The very next day Solicitors Journalreported that Palamon Capital Partners, a private equity firm, has bought a majority stake in QualitySolicitors...

On a serious note, the Gazette yesterday ran a piece asking: "Are solicitors really living through the ‘end times’ for law as they have known it?" The piece was in response to an article in The Times (sorry, no link - behind a paywall) which suggested that: "The tectonic plates of the legal services market are shifting", and that as a result "many practices would be ‘confined to the dustbin of history’". Eduardo Reyes analyses the claims, in a piece that is well worth reading.

Finally, the big news of the week was that most senior management and partners are unconvinced that social media has a role to play in their firms' development. Not sure that this should be a surprise - most senior managers have probably only just discovered what that screen someone put on their desk years ago can do.

It's been a fairly busy week in family law. Here are some of the highlights:

Firstly, congratulations to the winners of the inaugural Family Law Awards, which took place on Tuesday evening. An account of the evening can be found here, and photos of all the winners can be found here.

Moving on, Community Carereported on Tuesday that the final report of the Family Justice Review is expected to recommend that family court judges should have their powers of scrutiny limited to core decisions, such as whether to take a child into care, kinship arrangements and permanency planning, and that they should not have the power to scrutinise the detail of a council's care plan. The information was given to the National Children and Adult Services Conference by John Coughlan, director of children's services for Hampshire Council and a member of the review panel, who said that it would cut systemic delay and improve trust between courts and local authorities.

The Telegraph today reports that Education secretary Michael Gove is adding his voice to the adoption debate by urging local authorities to "intervene more vigorously" in child protection, to help speed up the adoption process. He apparently "warned that children were spending too long in care or with dysfunctional families when they could be adopted or fostered", and is quite clear where the blame lays:

"At fault is primarily a justice and a family justice system which does not prioritise the needs of the child and takes forever to make critical decisions which matter hugely in ensuring the child is found the right home."

I'm sorry? A justice system that does not prioritise the needs of the child? Does he actually know anything about the family justice system? I'm sure things can be improved, but words such as these are just an insult to the devoted professionals working within the system.

Turning to blogs, Marilyn Stowe has written an excellent post on the 'lottery case', S v AG. She looks at the process used by Mr Justice Mostyn to reach his decision, and asks whether he was right when he held that the lottery winnings were a non-matrimonial asset. She concludes:

"...this case does demonstrate the wide parameters that exist in many cases, even those which at first sight seem straightforward. I would have given the husband a more generous award out of what was ultimately a lucky win 11 years ago."

Such, of course, are the vagaries of a discretionary system, something that many clients find difficult to understand, when they come to us expecting precise answers.

Not exactly news, but Lucy Reed at Pink Tape has posted further about the Narey Report. Lucy mentioned on Twitter this week her propensity for writing a lot of words, and she certainly doesn't let us down here. However, they are all very good words, in an excellent order, making the post very well worth a read. Here is a taster:

"We can never achieve perfect parenting. I can’t achieve it. My clients can’t achieve it. Those members of the judiciary, social work and other professions who have children don’t achieve it. Adoptive parents don’t achieve it. We all bumble along doing our best. Sometimes we fail to put the children first, make a textbook mistake. And some parents really do fail and fail irredeemably. But except at the extremes it is essentially a matter of degree, a spectrum."

One of those "I wish I had said that" moments.

Lastly, on the subject of Twitter, yesterday I had a brief conversation there about blawging with @michaelscutt, in which I expressed a preference (as I have done before) for blawgs that include something personal from their writers - it just seems to me that that is the essence of blogging. Both Marilyn and Lucy put a lot of themselves into their blogs, and hence are certainly on my 'preferred' list.

Thursday, October 20, 2011

In Brough v Law [2011] EWCA Civ 1183, decided today, the Court of Appeal considered the effect of the parents' reconciliation upon a child maintenance assessment, with reference to the provisions of the Child Support Act 1991 as operative in 1999.

The Facts: The parents were married, and had a son, born in 1996. The mother made a claim for income support and was required to authorise the Secretary of State to seek child support on her behalf in respect of the child.

At a time when the parties were separated, a maintenance assessment was carried out and it was decided on 15th August 1999 that, as from 4th January 1999, the father was in principle liable to pay child support maintenance, but the actual amount of liability under the then rules was nil.

The parties reconciled on the 15th September 1999, but by November the reconciliation was over and they separated again.

The parties were divorced in 2001.

Subsequent to the divorce, the mother made a further claim for benefit. The Secretary of State decided on 9th July 2003 that, as from 24th January 2003, the father, who was by then in employment, was liable to pay child support maintenance of £94.21 a week.

On 14th February 2007, the father applied to the Secretary of State for the assessment to be cancelled, relying on the brief reconciliation in 1999. The Secretary of State agreed and cancelled the assessment as from 15th July 1999, a date amended by the Appeal Tribunal to 15th September 1999, the date on which the reconciliation commenced.

The mother appealed, but the Appeal Tribunal upheld this decision. The mother appealed again, and the Upper Tribunal allowed her appeal. The father appealed against that decision.

Held: Giving the leading judgment, Lord Justice Pill said (at paragraph 7) that the primary issue was the meaning and effect of paragraph 16(1)(b) of Schedule 1 to the Child Support Act 1991, which states that a maintenance assessment will cease to have effect "on there no longer being any qualifying child with respect to whom it would have effect". Under s. 3 of the Act (as operative in 1999), a child was a "qualifying child" if one or both of his parents was an "absent parent".

The father therefore argued that as from the date of the reconciliation neither parent was an absent parent and, accordingly, there was no longer a qualifying child. The assessment should thus have ceased to have effect at that time, and everything done subsequently was a nullity.

However, paragraph 16(1)(d) of Schedule 1 then provided that a maintenance assessment would cease to have effect: "where the absent parent and the person with care with respect to whom it was made have been living together for a continuous period of six months". The Court of Appeal held that "Parliament must have intended that an assessment would cease to have effect only at the end of six months continuous cohabitation", and not a shorter period (see judgment of Lord Justice Lewison, at paragraph 57).

This interpretation did not mean that the father was still liable to pay during the first six months of a reconciliation: the duty to make payments would in effect be suspended during the period of cohabitation and cease at the expiry of six months - see paragraph 58.

(Note that paragraph 16(1)(d) of Schedule 1 was repealed by the Child Support, Pensions & Social Security Act 2000.)

Further to my post of the 13th October, I was interested to read the letter of Caroline Goorney in the Gazette today. Caroline maintains that represented litigants are now at a "distinct disadvantage" when they appear opposite litigants in person. Apart from the issue of delay whilst the district judge explains the procedure to the LiP and the LiP "wastes time in obfuscation and irrelevancies", she says that:

"The district judge, fearful of an appeal, is often more lenient and generous to the litigant in person than to the representing solicitor; rules are sidelined and breaches overlooked. And all the while the paying client observes in wonderment as his or her legal adviser is repeatedly told to stop objecting, and their original costs estimate quietly doubles."

She concludes that she is seriously considering advising some of her clients "to attend court in person when faced with a litigant in person, so as to ensure a truly ‘level playing field’".

Wednesday, October 19, 2011

Family Lore has today been privileged to be granted a rare interview with Edgar Venal, Senior Partner at Messrs. Venal & Grabbit. The interview was arranged several weeks ago, and was described by Mr Venal as being "for the purpose of celebrating". Unfortunately, however, we found Mr Venal not to be in the best of moods for some reason...

Family Lore: Good morning, Mr Venal.

Edgar Venal: If you can call it good.

FL: It is a great pleasure to have the opportunity to interview you again.

EV: And an honour for you.

FL: Quite. Mr Venal, there has been surprise expressed in some quarters that you attended the inaugural Family Law Awards last night, given that you were not nominated for an award.

EV: I don't see why. I have always supported excellence in family law. Besides, I thought there must have been some mistake, and that I had really been nominated for an award. It needn't have been Family Law Solicitor of the Year - I would have settled for Outstanding Contribution to the Field of Family Law, or even ADR Practitioner of the Year, at a pinch.

FL: Were you disappointed when you found that you hadn't been nominated?

I don't normally give free publicity to commercial sites but this one caught my eye, for its shameless lack of political correctness. WazHis.com is described as "the official site for divorced women whom [sic] want to brag about what was it they took from the SOB whom [sic] hurt them in the first place." In other words: "It was his before, it is mine now!!"

The site includes a forum, where you can: "Share pictures of what you have taken from him (family car, the house, the dog, his flat screen!!!… anything you wish", and: "Get advice from others on how to take what you deserve, or even more than what you deserve!"

Sounds good to me.

If that's not enough, you can visit the store, where you can purchase such items as 'Waz His' panties ("so that what was it that Waz His before and its not his anymore!"), a 'Wazhis Bottle Sleeve' ("Keep your beer cold and keep him fuming!") and a 'Wazhis license Plate' ("Mount it on your car and rub it in!!!").

It seems that much of the interest is stemming from the implications of Mr Justice Mostyn finding that lottery winnings were non-matrimonial property, in particular that this will encourage spouses not to share wealth, and will cause more acrimony on marriage breakdown. These things may be true, but I don't think we have to be too concerned in the limited context of large lottery winnings - after all, your chances of winning the lottery are about as slim as, well, your chances of winning the lottery. I can't see the floodgates being opened with hundreds of divorcing lottery winners, anxious to keep their sweaty hands on their luckily-gotten gains.

It's not the case anyway that the decision means that all lottery winnings will be non-matrimonial property. It will depend upon the facts. For example, it may be clear that entering the lottery was a joint amusement that the parties shared. In any event, in many cases the winnings will have been spent and what is left will clearly be matrimonial property.

There is, however, a wider context that may give cause for concern, as suggested by Amanda Melton in the commentary mentioned above. There does seem to be a trend towards expanding the category of "non-matrimonial property", i.e. property which is not part of the 'joint endeavour'. Lottery winnings may be rare, but inheritances (for instance) aren't. If the courts keep adding to this category, then the implications mentioned above may become real concerns.

Monday, October 17, 2011

There are a lot of fake 'wedding disaster' videos out there, but this one looks (and sounds) real to me. I suppose if you insist on getting married where iguanas live, then you have to expect this sort of thing. Anyway, all he (she?) wanted was a piece of cake:

Saturday, October 15, 2011

As litigants in person seems to be the subject of the moment, I thought I would return briefly to S v AG, the case I reported yesterday, to point out a couple of things mentioned by Mr Justice Mostyn, typical of cases where parties are not professionally represented.

In S v AG neither party was professionally represented, a fact that, as he said, did not make Mr Justice Mostyn's task any easier. He explained (at paragraph 3):

"When I walked into Court on Monday 10 October 2011 I had only been given three documents relating to the case namely a letter dated 19 September 2011 from the Applicant's former solicitors explaining that they were no longer instructed; a Notice of Acting in Person; and a copy email from the Royal Mail purporting to show that the 2nd Respondent had been personally served with a freezing injunction. Beyond that I knew absolutely nothing about the case."

Now, if such a situation arose where either party had a solicitor, then the case would have been adjourned to some future date for it to be properly prepared, and the solicitor(s) severely reprimanded (and probably penalised with a wasted costs order). However, Justice Mostyn decided to proceed on the following day, after some basic preparation had been carried out. He also granted rights of audience to each party's McKenzie friend, one of whom also had to carry out translation duties, as the wife could not speak English.

All in all, a thoroughly unsatisfactory situation I would have thought, and certainly one which would have been quite different if either of the parties had been professionally represented. Of course, the litmus test is whether the final outcome of the case would have been any different, but that is almost impossible to say, without running the case through again with one or both of the parties having professional representation.

Another small consequence of no professional representation cropped up near the end of the judgment (paragraph 42):

"Both parties have raised conduct. It is a common feature of many financial remedy cases where parties represent themselves. Although both parties behaved poorly towards each other, H perhaps worse than W, the very high threshold mandated by the authorities (Miller and McFarlane, S v S, McCartney v Mills-McCartney [2008] 1 FLR 1508) for conduct to be capable of being reckoned is not crossed."

This certainly rings a bell with my own experience. I don't know how much time the parties spent arguing conduct, but it would obviously have been time (and effort) wasted, as any professional representative would surely have advised them.

Such are the pleasures that will soon surely be the commonplace experience for our judiciary...

The Facts: H and W are both Colombian, but moved to this country in about 1991. They were married in 1984, and there are two children, both now grown up. In December 1999 W and her friend MEM entered into a written syndicate agreement for the National Lottery Big Draw 2000, and their ticket won £1 million. A cheque for that amount was issued to MEM and on 10 January 2000 £500,000 was paid into an account in the name of W.

In May 2000 W purchased the former matrimonial home in her sole name for £275,000. On 1 January 2004 H was removed from the property by the police in the context of an episode of serious domestic violence. The parties have not lived together since. On 20 October 2005 H registered a Notice of Matrimonial Home Rights against the property.

In August 2006 H issued divorce proceedings here and W countered this by issuing divorce proceedings in Colombia. The marriage was then dissolved by the Columbian court.

On 9 April 2010 H applied under s12 and 13 MFPA 1984 for leave to apply for financial relief following an overseas divorce. Leave was granted in June 2010.

Held: Mr Justice Mostyn rejected two contentions by W, namely that she and H had been de facto separated, albeit under the same roof, since 1996, and that W had not, in fact, won £500,000 on the lottery, as her participation was just a charade sought by MEM.

He then considered the present financial circumstances of the parties, and concluded (at paragraph 35) that H had a need for a lump sum of £82,000 for pension provision.

With regard to the sharing principle, he held (at paragraph 36) that the initial receipt of the lottery prize was non-matrimonial property, but that when W purchased the matrimonial home she converted that part of her non-matrimonial assets into matrimonial property. He did not consider that H was entitled to half of the matrimonial property, or anything like it (paragraph 37), but judged that a sharing of 15% - 20% would be fair, which would give H £72,000 - £96,000. Applying both the sharing and needs principles he concluded that a lump sum award of £85,000 was the right result.

There seems to be no end to the number of practice notes issued by the Law Society. The latest, published yesterday, is on the subject of outsourcing. As the Law Society says: "Outsourcing is a growing area in legal service delivery. This practice note gives an overview of outsourcing and the regulatory requirements you need to consider." Interestingly, there seems to be no definition of 'outsourcing', which seems a little odd - I wouldn't have thought it hard to define. There is, however, a short list of examples of outsourcing in section 3 of the practice note, including "activities which would normally been undertaken by a paralegal". Hmm. I would guess the most common example though is the outsourcing of secretarial services. If your firm is thinking about entering into, or who has already entered into, an outsourcing arrangement, then this practice note is for you.

The prize for the headline of the week goes to This is our final OFR, an article in the Gazette, in which Paul Rogerson talks to SRA chief executive Antony Townsend "about the implementation of outcomes-focused regulation in a rapidly changing legal services market". If that is not enough OFR for you, then you can read this article, also in the Gazette, in which Charles Plant, chair of the board of the SRA, explains how OFR provides a sound framework for the future. "With outcomes-focused regulation", he says, "we will focus on the issues that really matter and which suit the fast-paced, modern and liberalised legal services market". I'm sold...

Finally, we must not think that being advised as to how to practise as lawyers is a new phenomenon. Obiter in the Gazette this week goes down memory lane to look at a 1951 article, which in turn looked at The Compleat Sollicitor, published in 1668. The book was intended for the "Sollicitor teaching his Clyent to run through and manage his own business as well in His Majesties Superiour Courts at Westminster as in the Mayor’s Court, Court of Hustings and other Inferiour Courts," and includes advice upon how "Safely to Conduct the Zealous Pilgrim through the sullen deserts and over the craggy precipices of the Herculean Voyage towards the intricate practice of the Laws Mysterys." Remarkably, The Compleat Sollicitor is available on Amazon. I'm off to buy it now...

"1.The Government welcomes the Justice Select Committee’s Report on the Operation of the Family Courts. We fully recognise the need for reform and the Family Justice Review is undertaking a comprehensive examination of the current operation of family justice in England and Wales. It is due to report before the end of the year.

2.Much of the analysis in the Select Committee’s report chimes with the emerging findings from the Review, and is similar in its diagnosis of underlying issues and areas for improvement in the current system. However, it would be wrong at this stage to pre-empt the findings of the Family Justice Review. The Government awaits the final report of the Review, to which we will respond in due course.

3.There are, however, areas in which the Government has already started work to address some of the main themes identified in the Committee’s Report, in particular promoting greater use of mediation, and work to improve the quality of data on the performance of the family justice system. This Response provides further information on the work currently underway, the progress we have already made and the further work planned."

Some of the responses in more detail:

"We accept the Committee’s observations about implementing changes to legal aid alongside those to the family justice system. We will look carefully at the interactions and the combined effects of both sets of reforms when developing implementation plans for the Family Justice Review’s recommendations. It should be noted that some of the Government’s legal aid changes will be introduced in advance of the implementation of the recommendations of the Family Justice Review." (Paragraph 12)

"The question of shared parenting is one which is being considered by the Family Justice Review. The terms of reference for the review include consideration of how the positive involvement of both parents following separation should be promoted, and we await the Review’s final recommendations." (Paragraph 14)

"We acknowledge that delays in public law cases are at unacceptable levels, and that such delay is not in the interests of the children involved. We await publication of the Family Justice Review, and are keen to see the Panel’s recommendations for reducing delay." (Paragraph 15)

"We accept that mediation may not be suitable in every case. Legal aid will remain available for cases where there is evidence of domestic violence and cases where a child is at risk of abuse to safeguard vulnerable groups. Currently 71% of clients who attempt publicly funded mediation reach a full or partial agreement." (Paragraph 22)

"We welcome the committee’s endorsement of the Pre-application protocol. We envisage that there may be a need to revise the pre-application protocol to take account of the recommendations of the Family Justice Review. We are also receiving feedback from mediators and operational staff on how the pre-application protocol could be further improved." (Paragraph 32)

"We accept the Committee’s recommendation on the importance of ensuring that the voice of the child is heard during mediation and we will continue to work with the FMC to make sure that all mediators are made aware of the benefits of listening to the child." (Paragraph 35)

"Whilst unrepresented litigants have always been a feature of the justice system, the Government agrees that both the civil and family justice systems will need to become simpler to navigate and more responsive to the needs of unrepresented users of the system. This will come about in part through the results of the Family Justice Review. The Government also accepts that procedures and guidance will need to be reviewed and improved in advance of the legal aid reforms taking effect. We are starting this work now." (Paragraph 62)

(Re: Increasing public confidence in the family court system) "...we will not be bringing forward further legislative change in the near future. We will instead look at measures that can increase the amount of publicly available information about the work of the family courts, including encouraging judges to publish more family court judgments." (Paragraph 75)

The Response concludes: "The Government is grateful to the Committee for its helpful contribution to the reform of family justice services. The Family Justice Review is expected to publish its final report later this year, setting out its recommendations for the reform of family justice. The Government will consider the Review’s recommendations carefully, and we will publish our response, setting out our programme of reform, in due course."

To be honest, I'm not really sure whether the Select Committee Report and this Response is anything more than a sideshow to the main event, i.e. the Family Justice Review. Obviously, in many (most?) instances, the Response could do nothing more than say "wait for the Review". Quite why the Select Committee couldn't have simply made its views known to the Review, I don't know.

A story in the Gazette today, and in particular a comment upon the story, has got me wondering whether the increase in litigants in person may not just increase delay for all court users, but also reduce the standard of justice.

The story highlights research by the Personal Support Unit, which indicates that the state of the economy has already led to a dramatic increase in the number of litigants in person, even before the proposed cuts to legal aid, which will surely cause another huge rise. The story refers to the previous article by one of my former local district judges Peter Glover back in August, when he warned that more litigants in person will threaten the county courts with additional delays.

However, what really got me thinking was a comment upon the story by 'DomCoop'. He/she says that litigants in person frequently fail to comply with directions, produce worthless documents that contain nothing more than a rant, and fail to properly reply to questions raised by the other side. I'm sure that all family lawyers have experienced these things. The problem arises however, as DomCoop says, when the court "inevitably overlook all the failures to comply", making the proceedings a lottery for the other party, with the actual case being run only coming out during cross-examination at trial.

I can't recall myself coming across a situation where the court lets a litigant in person 'get away with it' in this way, but I can imagine the temptation for courts to allow such things, as they try to progress matters without yet more delay. And that temptation will surely get greater if the numbers of litigants in person continue to rise.

Don't get me wrong: I have nothing against litigants in person, but they must not cause opposing parties to be at a disadvantage, in addition to having to suffer increased delays.

Wednesday, October 12, 2011

As it says in The Guardian: "Iranian-born comedian Shappi Khorsandi mocks Iran's laws on stoning as part of Amnesty International's campaign against the death penalty. Iranian penal laws allow men and women to be stoned to death for 'crimes' such as adultery, but only if stones of the correct size are used in the execution."

Tuesday, October 11, 2011

I was toying with the idea recently of doing a series of posts on past Presidents of the Family Division. I wasn't sure whether I would go ahead with the posts, but whilst doing some initial research I realised what a remarkable life Lord Simon of Glaisdale had, so I decided to write a post about him, even if I don't do the others.

Lord Simon was not actually the President of the Family Division, but rather the last President of the old Probate, Divorce and Admiralty Division ("Wills, Wives and Wrecks"), before the Family Division was created in 1971. He was appointed to the position in 1962, and therefore oversaw the great changes in divorce law of the 1960s, in particular the Divorce Reform Act 1969, which allowed separation as a basis of divorce without proving fault, and which led to a huge surge in the number of divorces.

Born Jocelyn Edward Salis Simon in 1911 and known as 'Jack Simon', he was educated at Gresham's School, in Holt, Norfolk and went on to read English at Trinity Hall, Cambridge. In 1934 he was called to the Bar by the Middle Temple, where he was a Blackstone Prizeman, and joined the chambers of a certain Tom Denning, practising mainly in family and trust law.

His promising career was soon interrupted by the Second World War. He was commissioned in the Royal Tank Regiment, commanding the Special Service Squadron of the Royal Armoured Corps when it landed in Madagascar in 1942. After his tank was knocked out and his dismounted troops ran out of ammunition, they became prisoners of the French for 24 hours during which, as he liked to recall, they ate their best meal since the war began and his troops experienced a situation unique since the Napoleonic War. In 1944 he fought in the Burma campaign and ended the war as a lieutenant-colonel.

On his return to the Bar in 1946, Simon re-established his practice, frequently acting as junior to Seymour Karminski KC, head of his chambers and a leader of the Divorce Bar. When Karminski was promoted to the Bench in 1951, Simon himself took silk.

His career then took on a quite different and unexpected path. In the lead up to the 1951 general election which returned Winston Churchill to power, he was offered the Conservative Party candidacy for the seat of Middlesbrough West, which was then held by the Labour Party. He ran a successful campaign and was elected by a narrow majority. He would hold the seat for 11 years, increasing his majority in both of the subsequent general elections.

Despite continuing his legal practice, Simon's political career took off. He was almost immediately appointed Parliamentary Private Secretary to the Attorney-General, and in 1957 he was appointed Joint Parliamentary Under-Secretary of State at the Home Office. The following year he was promoted to Financial Secretary at the Treasury, succeeding Enoch Powell, and in 1959 he became Solicitor-General, a job which brought with it a knighthood.

His career then took another turn when in 1962, to widespread surprise, he turned his back on a possible position in the Cabinet by resigning from his office and his seat in Parliament and accepting the appointment as President of the Probate, Divorce and Admiralty Division, the last law officer to be offered the post of the head of a judicial division. According to his obituary in The Independent, written by then President Sir Mark Potter:

"As President, he was an instant success. Patient and meticulous, he was a pleasure to appear before and his judgments, elegant and learned, a pleasure to read. Despite his firm belief in the sanctity of marriage and his strong opposition to divorce by consent, he was humane and progressive in his application of the law."

Not all thought him to be progressive, though. For example, in 1965 he supported a scheme to prohibit divorce for couples with children under 16, saying that the sums released by reducing the divorce rate could be spent on education and marriage guidance. Labour MP Leo Abse described the proposals as "extraordinarily naive", and seeming to come "out of another century".

At about this time Simon was diagnosed with a benign tumour in his neck. The removal of the tumour caused paralysis to one side of his face, the loss of sight in one eye, and a slight slurring of his speech. After this, he often wore a black eye-patch, which some commentators rather obviously said gave him a "somewhat piratical air".

He continued as President until 1971, when he was promoted to the House of Lords, where he sat as a Law Lord until he retired from judicial office in 1977. Thereafter, he continued to attend the House of Lords and took a close interest in legislation, sitting as a cross-bencher. He died in 2006.

Whilst preparing this post I have come across various anecdotes regarding Lord Simon. I couldn't include them all without making the post considerably longer than it already is, but perhaps two quotes are my favourites. Simon was an avowed feminist who thought that many divorced women, particularly those no longer young, had a rough deal from husbands who wished to move on to 'newer models'. On one occasion he asked: "Is it consonant with our ideas of justice that a husband who has enjoyed the services of his wife during her springtime and summer, should be able to cast her away in the autumn?" On another occasion he observed: "The cock can feather the nest because he does not have to spend most of his time sitting on it."

Monday, October 10, 2011

At first blush the decision in H-K (Children) [2011] EWCA Civ 1100, handed down today, may seem a little contrary: a family come to England clearly intending only to stay for a year, and yet the Court of Appeal held that they were habitually resident in this country.

The Facts: The Father is an Australian citizen but appears to have dual British nationality. The Mother is British with Australian rights of residence which expire in 2014. The parties met in Sydney but never married. The couple have two children, a boy, S, of 8 and a girl, M, of 2. The family lived in Australia but decided to come to England for a year to live in a house owned by the Mother.

They left Sydney in February 2010, leaving behind many of their personal possessions. They arranged with S's school that a place would available for him at the start of the new academic year in Australia in February 2011. In England, S was placed at a local school, and the couple worked when they could, otherwise relying on benefits.

In December 2010 the Mother decided that she would not go back to Australia, and told the father. The parties then agreed that the father would return to Australia in February but that the mother could remain in England with the children until June, when she would return to Australia.

The mother did not intend to keep to this agreement, but 'strung along' the father, until she told him in May that she would not, in fact, be returning to Australia.

The father then commenced proceedings under the Hague Convention, his case being that the mother's refusal to return to Australia amounted to a wrongful retention of the children in breach of his rights of custody. Mrs Justice Hogg found in his favour, and made an order that the children be returned to Australia. The mother appealed.

Held: Lord Justice Ward gave the leading judgment. He said that the issue which arose was whether the children were habitually resident in Australia at the time of their retention by the mother, as Mrs Justice Hogg had found.

Lord Justice Ward considered Mrs Justice Hogg's decision and found that she had "allowed her focus to move erroneously to require more permanence for [the family's] sojourn here than is necessary to establish that the habitual residence of the family became established in England" (paragraph 23). The correct approach, he said, was that used by Lord Scarman in Reg. v. Barnet L.B.C., Ex p. Shah [1983] 2 AC 309, in which he (Lord Scarman) said (when considering the term 'ordinary residence') that the emphasis should be "not on intention or expectation for the future which is implicit in the idea of permanence, but on immediately past events, namely the usual order of the applicant's way of life and the place where in fact he has lived".

Accordingly, Lord Justice Ward drew the following inferences from the facts (paragraph 22):

" (1) The family came here voluntarily.

(2) They came to live in England for one year. In substance they packed up their home in Australia (albeit temporarily) and established a new abode in England.

(3) There were all the indicia of integration into a social and family environment in England. They lived in a house the Mother owned. Her family was nearby and supportive. The parties worked when they could find work. They then sought and obtained social security benefit. S was established in school. It was, for the time being, a settled way of life.

(4) Their intended stay and their actual stay was of a sufficient duration not to be transient, or to adopt the Court of Justice's phrase in Re: A, "peripatetic" in the sense of their passing through England as a stopping spot on the journey back to Australia.

(5) The purpose of their sojourn was settled: it was to see if the Mother could overcome her homesickness and so save the relationship. This involved their adopting a new way of life in a new country for a long enough period to achieve that objective.

(6) If stopped in the high street and asked once they had settled in their new home in the north of England, "Where do you ordinarily live" they would be bound to have answered, "We ordinarily live in that property over there although our real home is in Australia." Their real home does not, however, provide the answer to the question whether they were still habitually resident in Australia.

(7) The Mother's continuing deceit of the Father from December onwards cannot alter the essential character, as a matter of fact, of the way of life they had already adopted in England."

In these circumstances he allowed the appeal, and dismissed the father's application.

Saturday, October 08, 2011

I heard this mentioned on the radio this week. It was the third track on Steely Dan's great 1974 album Pretzel Logic, probably my favourite of all their albums. Takes me back to my university days - the album was always being played in the Junior Common Room. Good times...

Friday, October 07, 2011

Something very important happened in family law recently. It was so important that we at Venal & Grabbit felt we should inform readers of Family Lore about it.

The very important thing to note about this very important thing is that we here at Venal & Grabbit are experts at dealing with such very important things. We have a dedicated family department that is fully up to date with all of the very important things happening in family law.

If this very important thing applies to you, then we at Venal & Grabbit can help. Just call us on 01234 666-666 or email EVenal@venalandgrabbit.co.uk.

There are, of course, only two stories this week: the implementation yesterday of outcomes-focused regulation ('OFR') and the (final) arrival of the alternative business structure ('ABS').

As to the former, you may find the new SRA Handbook on their site here, and a useful 'at a glance' guide here, including a table comparing the old and new approaches. I will not attempt to explain the new regulatory requirements - I am sure many others far more learned than I will rise to this task. If, however, you are worried about the new rules, the new jargon and the sheer volume of it all (the Handbook runs to 658 pages) then I suggest you take the advice of David Pickup in the Gazette on Monday: Don't panic! David offers useful guidance, and a touch of common sense: "I find phrases like Outcomes-focused regulation and indicative behaviours to be gobbledegook." So it's not just me, then...

Before I move on I must mention this article in the Gazette yesterday, which brings the whole business of OFR into perspective. The article points out that back in 2007 the Financial Services Authority switched to an ‘outcome-focused’ compliance regime, which was supposed to "sustain the current, rigorous regulatory environment, but with better and more effective outcomes". The writer goes on:

"And we know what happened subsequently, because we are still living with the dire consequences.

There remains cause for bemusement that the legal sector was keen to ape an organisation that so abysmally failed to anticipate the banking crisis."

Hmm...

Turning to ABSs, New Law Journal happily pronounces that "Tesco law is here!" The excitement of the occasion is clear, with Justice secretary Ken Clarke recently likening the moment to the financial sector “Big Bang” of 1986, and Justice minister Jonathan Djanogly telling us that: “This is a landmark day for the UK legal industry." The story does, however, add a touch of reality by pointing out that law firms will not be able to form ABSs until at least the new year, as the SRAs application to license ABS has been delayed, and is now expected at the end of 2011. Further, the Council for Licensed Conveyancers is the only regulatory authority currently in a position to authorise an ABS licence. So not so much big bang as small fizzle...

I shall finish this week by turning away from the two big stories, and returning to a subject I have raised in previous weeks: the dreaded mySRA, and a post by Michael at Law Actually, who says of the debacle over activating accounts:

"...mySRA is a horrible name and is worrying close to the killer hospital bug MRSA. Given the atrocity of MySRA that solicitors up and down the country have had to suffer through, I think the name is scarily apt."

Disclaimer

Nothing in this blog should be construed as legal advice. If you require legal advice upon any family law related matter then you should consult a solicitor. Any links to other blogs or web sites are provided for convenience only and I cannot accept any responsibility for the contents of such linked blogs/sites.